The number of corona outbreaks is increasing by the day and the first cases within the Netherlands and Belgium are a fact. For you as an employer, it is important to think carefully about your absence protocol and the preventive measures to be taken. How do you deal with the risk of corona at the workplace? What can you do to protect your employees and what (legal) requirements are imposed on this policy?
1. Does an employer have to pay the remuneration of workers affected by Coronavirus?
Employees affected by the Coronavirus will benefit from the same protection than any other Belgian employee on sick leave.
This means that the guaranteed remuneration should be paid by the employer to the employees for the first 30 calendar days of the sick leave. After this period, employees can benefit from a replacement income from their health insurance fund.
If an employee is placed in quarantine as a result of an infection to the coronavirus, he will therefore benefit from the guaranteed salary or of replacement income after the first 30 calendar days of the sick leave.
2. Should an employer continue paying the remuneration of the employees placed in quarantine as precautionary measure?
If an employee is quarantined as a precautionary measure by the government, he can no longer work. This is a case of force majeure. The execution of the employment contract is therefore suspended and the employer is no longer obliged to pay the remuneration. In this situation, the employee could benefit from temporary unemployment allowances for force majeure and receive a replacement income from the RVA/ONEM for these days of inactivity.
When the employee can continue to fully work while not being on the company’s premises, salary will be due and this would not be seen as temporary unemployment.
3. Can you require employees to tell you whether they have travelled or plan to travel to Corona affected destinations?
Belgian employment law tells employers to ensure the health and safety of all their employees. As a result, an employer may instruct its employees to notify the management about any trips made or planned to Corona affected destinations.
From a data protection perspective, it is worth noting that simply asking for the information without documenting the answers, is not subject to the data protection laws in Belgium. These requirements (including the General Data Protection Regulation (GDPR) only become relevant when the employer decides to record, document, store, share or otherwise process the obtained information about travel destinations. Employers will then at least need to take the following into account:
- There should be a real need to document and process the information (for example because the size of the organization requires such obtained information to be able to keep track of possible risks, or because the employer would be required to provide travel information to government agencies or health care providers).
- There is an overriding legitimate interest of either the employer itself or of (other) employees within the company to process the travel related information (for example where documenting the information is needed to be able to decide on preventive measures, to protect other employees within the organization, or for good employment practices).
- Employers need to inform their employees (prior to collecting the information) about the fact that they will document, record or otherwise process the information and for what purposes they will do so. If the information will be shared with third parties, the employees need to be informed thereof as well.
- Taking into account the above, it is not required to ask for the employees’ consent for collecting the required information and employers should refrain from doing so.
4. Can you prohibit employees to travel to Corona affected destinations?
Employers must take proportionate action to protect employees from infection with the Coronavirus, which may include cancelling business trips to destinations where governments and insurance guidelines advise not to travel to.
Though they may advise against it, employers are not allowed to prohibit employees from visiting Corona affected destinations in their private life. This being said, an employer has a legitimate aim to protect all its employees and – as indicated under question 1 – may ask its employees to notify them if the employee stayed in a Corona affected area.
5. Can an employer ask its employees questions about any Corona related symptoms or diagnoses?
The GDPR does in general not prohibit an employer from asking such questions. Furthermore, the GDPR does not apply when the employer is only collecting information orally (without the intention to document it).
Privacy related restrictions will however apply if the employer decides to record, document, store, share or otherwise process the obtained information about symptoms or diagnoses. Such information is considered health related and sensitive under the GDPR, as a result of which it is in principle prohibited to process such data. In this regard, only very limited exceptions apply.
On top of that, an employer can only require employees to stay home if the employee concerned shows clear, external symptoms of illness – as indicated under question 4 –.
In absence of clear, external symptoms, the employer can always agree with the employees that they work from home, especially if the employees concerned regularly work from home or if a policy in this regard is in place. Without agreement, please note that prohibiting a healthy employee to come to work can constitute an illegal unilateral change in his or her terms of employment.
6. Can an employer screen its employees for fever and/or oblige the employee to go to the (company) doctor before allowing them in the office?
Given that the employer has an obligation to take reasonable measures to ensure the health and safety of its employees, we believe that this serves as a legitimate requirement to ask employees to visit the (company) doctor and to require them to stay home in case the employee shows clear, external symptoms of illness.
Please note that an employee may refuse to be examined if he/she is of the opinion that such examination is an invasion of privacy. Only in case of clear, external symptoms, reported in writing by other employees as well, the employer may send the employee home on the basis of good employership.
To avoid that privacy requirements become applicable, the employer should refrain from documenting or otherwise processing personal data of its employees in this context, including the results of the screening and information about doctors’ visits. If the employer would for example decide to keep a list of the employees’ temperatures, this will likely be considered as the processing of health data, which is in principle prohibited under the GDPR.
7. Are there solutions for companies experiencing serious business disruption due to the coronavirus epidemic?
Belgian employers impacted by business disruption due to the Coronavirus (e.g. supply disruption due to business partners located in affected areas or important decrease of the number of clients in the tourism or the passenger transport sector) can implement the temporary unemployment scheme for economic reasons.
In this situation, employees would temporarily stop working due to lack of work and would receive a replacement income from the RVA/ONEM for the days of inactivity.
